The determination of the effective date for an original claim or a reopened claim is governed by 38 U.S.C. section 5110(a), which provides: “Unless specifically provided otherwise in this chapter, the effective date of an award based on an original claim [or] a claim reopened after final adjudication . . . shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor.” The implementing regulation similarly states that the effective date shall be the date of receipt of the claim or the date entitlement arose, whichever is later, unless the claim is received within one year after separation from service. See 38 C.F.R. § 3.400. “Generally, effective dates of compensation awards are attached to the date of receipt of the application for benefits, and no earlier.” Sharp v. Shinseki, 23 Vet. App. 267, 273 (2009) (citing 38 U.S.C. § 5110(a)). Significantly, “the effective date of an award of service connection is not based on the date of the earliest medical evidence demonstrating a causal connection, but on the date that the application upon which service connection was eventually awarded was filed with VA.” Lalonde v. West, 12 Vet. App. 377, 382 (1999); seeBrannon v. West, 12 Vet. App. 32, 35 (1998) (the “mere presence of medical evidence does not establish the intent on the part of a veteran to seek service connection for a condition.”).
The effective date may also be the date on which entitlement to the benefit arose, if later than the date of the claim. 38 C.F.R. § 3.400(o). A challenge to a decision assigning an effective date with which a claimant disagrees may be made through a direct appeal of the decision, commencing with the timely filing of a Notice of Disagreement. 38 U.S.C. § 7105. The NOD must be in writing and filed within one year “from the date of mailing of notice of the result of initial review or determination.” 38 U.S.C. § 7105(b)(1). Rowell v. Principi, 4 Vet. App. 9, 17 (1993); Cuevas v. Principi, 3 Vet. App. 542, 546 (1992). Alternatively, if the decision assigning an effective date has become final, a claimant may only pursue one of the statutory exceptions to challenge the finality of that decision. See DiCarlo v. Nicholson, 20 Vet. App. 52, 56-57 (2006) (discussing the types of collateral attack authorized to challenge a final decision by the Secretary); see also Cook v. Principi, 318 F.3d 1334, 1339 (Fed. Cir. 2002) (en banc) (same).
However, in Rudd v. Nicholson, 20 Vet. App. 296, 299 (2006), the Court held that claimants may not properly file, and VA has no authority to adjudicate, a freestanding earlier-effective-date claim in an attempt to overcome the finality of an unappealed RO decision. The Court reasoned that to allow such claims would vitiate the rule of finality. Id. Although there are numerous exceptions to the rule of finality and application of res judicata within the VA adjudication system, a freestanding claim for an earlier effective date is not one of the recognized statutory exceptions to finality. See DeLisio v. Shinseki, 25 Vet. App. 45, 51 (“[A]n effective date generally can be no earlier than the date of the claim.”); Canady v. Nicholson, 20 Vet. App. 393, 398 (2006) (holding that a “proper effective date is a finding of fact” reviewed under the “clearly erroneous” standard).
A claimant may establish an effective date earlier than the date of the claim if the claimant is able to show an increase in disability in the one-year period preceding the claim. Hart v. Mansfield, 21 Vet. App. 505, 509 (2007) (“When a claim for an increased rating is granted, the effective date assigned may be up to one year prior to the date that the application for increase was received if it is factually ascertainable that an increase in disability had occurred within that timeframe.”); Dalton v. Nicholson, 21 Vet. App. 23, 34 (2007) (“Board is required to search the record to determine whether it is factually ascertainable that in the one year prior to the application there was an increase in disability.”); Harper v. Brown, 10 Vet. App. 125, 126-27 (1997) (noting that the general rule applies unless it is factually ascertainable that the increase occurred within the year preceding the filing of the claim); see also Scott v. Brown, 7 Vet. App. 184, 189 (1994) (under the terms of section 5110(b)(2), the effective date is either the date of the claim or “some date in the preceding year if it were ascertainable that the disability had increased in severity during that time”).
In other words, the actual increase in disability must have occurred during the one-year period immediately preceding the date of the claim; any evidence demonstrating an increase earlier than the one-year period is not a basis for an effective date earlier than the date of the claim. The Board’s determination of the proper effective date for an award of VA benefits is a finding of fact reviewed under the “clearly erroneous” standard of review set forth in 38 U.S.C. § 7261(a)(4).
There are only two ways to establish an earlier effective date after a decision has become final: (1) by establishing a “Clear and Unmistakable Error” was made or (2) by submitting official service department records that existed, but were not considered, in a decision. See 38 U.S.C. §§ 5109A, 7111; 38 C.F.R. §§ 3.156(c); 20.1403. As discussed elsewhere in this Knowledge Book, CUE is a “very specific and rare kind of error” that has special pleading requirements. Section 3.156(c), however, is fairly straightforward. If VA or a claimant discovers a service department record, such as a service record, service medical record, or unit report or log, and it is relevant to a previous decision, VA must reconsider that decision. If reconsideration of the claim with the newly found record results in an award, the effective date of that award is the date that the originally denied claim was submitted, no matter how far back. 38 C.F.R. § 3.156(c)(3).
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